Citation Nr: 1510314
Decision Date: 03/12/15 Archive Date: 03/24/15
DOCKET NO. 12-30 767A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUE
Entitlement to service connection for a skin disorder, to include as due to herbicide exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The Veteran served on active duty from November 1969 to November 1973, to include service in the Republic of Vietnam.
This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions promulgated in July 2008 and March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
For the reasons stated below, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In this case, the Board finds that further development is required in order to comply with the duty to assist.
Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).
Under the law, a veteran who, during active military service, served in the Republic of Vietnam between January 1962 and May 1975 shall be presumed to have been exposed to herbicide agents, including Agent Orange. 38 U.S.C.A.
§ 1116. In this case, the record reflects the Veteran did have service in Vietnam during that period from November 1970 to May 1971, and, as such, he was presumptively exposed to herbicides at that time.
The law also provides that veterans exposed to herbicides are presumed service-connected for certain conditions, even if there is no record of such disease during service, including chloracne or other acneform diseases consistent with chloracne. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.309(e). To qualify for entitlement to service connection on a presumptive basis under 38 C.F.R. § 3.307, the diseases listed at
§ 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii).
In this case, the Veteran reported at a February 1996 VA Agent Orange examination that he always had a skin rash after his return from Vietnam (beginning about 1971); that he first sought treatment for a skin rash after discharge, in about 1975 or 1976, from a private general practitioner; had no recurrence of the skin rash over the next 15 years or so; and it was limited to his chest, rib cage, and anterior thighs bilaterally. Diagnoses from this examination were dermatitis for a few years following the Vietnam tour of duty, with a brownish discoloration area in the upper abdominal and erythematous (depigmentation spot) in the lower left abdomen; and hemangioma, multiple and small (especially chest and abdomen since 1975. Thereafter, treatment records dated in March 2008 show findings of possible chloracne with combination of seborrheic dermatitis.
In addition to the Veteran's account of his history of a skin rash after his return from Vietnam, and treatment for a skin rash within a year or two of discharge, his spouse submitted a supporting lay statement to the effect the Veteran had acne on his back, chest, and neck when he returned from Vietnam.
In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").
In this case, the Board acknowledges that the Veteran and his spouse are competent, as lay people, to describe visible skin problems. However, the specific diagnosis of the Veteran's skin problems is the type of issue which generally requires competent medical evidence to resolve. Moreover, this finding is supported by the fact the Veteran has already received multiple diagnoses for his skin problems; as well as the fact that there was no indication of any skin problems in his service treatment records, to include his November 1973 release from active duty examination; and no competent medical evidence of skin disorder until years after his separation from service. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (The normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim.).
Here, nothing on file shows that the Veteran or his spouse has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, these contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1).
In view of the foregoing, the Board finds that this case must be remanded to accord the Veteran a VA examination to address the nature and etiology of his current skin disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (When the medical evidence of record is insufficient, in the opinion of the Board, or of doubtful weight or credibility, the Board must supplement the record by seeking an advisory opinion, ordering a medical examination, or citing recognized medical treatises that clearly support its ultimate conclusions.).
Accordingly, the case is REMANDED for the following action:
1. Request the names and addresses of all medical care providers who have treated the Veteran for skin problems since September 2012; and determine whether there are any VA treatment records for the relevant period. After securing any necessary release, obtain those records not on file.
2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service skin symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence.
3. After obtaining any additional records to the extent possible, the Veteran should be afforded an examination to determine the nature and etiology of his claimed skin disorder. The claims folder should be made available to the examiner for review before the examination.
The examiner should diagnose all skin disorders found to be present. Thereafter, he or she should opine as to whether it is at least as likely as not that any diagnosed skin disorder is related to or had its onset during service, to include as due to herbicide exposure. If chloracne or other acneform diseases consistent with chloracne is diagnosed, the examiner should indicate whether it manifested within one year of May 1971, and, if so, to describe such manifestations. The examiner should also opine whether it is at least as likely as not any diagnosed chloracne or other acneform diseases consistent with chloracne is otherwise related to service, to include herbicide exposure. The statements from the Veteran and his spouse regarding his history of skin problems should be taken into account when making this determination.
A complete rationale for any opinion(s) expressed should be provided. If the examiner is unable to offer an opinion without resort to speculation, the examiner should provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge.
4. After completing any additional development deemed necessary, readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review.
If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained after the issuance of the October 2012 SOC, and provides an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).